In this case, the defendants brought a motion to strike various
parts of the Statement of Claim without leave to amend. Counsel
settled parts of the motion before hearing. Success was divided.
Where paragraphs were struck, the plaintiff was allowed to amend
Seven paragraphs dealt with allegations that the defendants made
false and misleading representations. The defendants filed evidence
to try to show these allegations were frivolous and vexatious.
However, the Court held that it must accept the facts alleged in
the pleading as proven or true unless they are patently ridiculous
or incapable of proof. In this case, although the facts pleaded are
in dispute, they are material to the pleadings. Thus, the
allegations are not scandalous frivolous or vexatious, and were not
ordered struck. Similarly, a further paragraph relating to
conspiracy was not struck, as the Court held that the necessary
facts were pleaded to establish both types of conspiracy
The next impugned paragraphs dealt with allegations under s. 36
of the Competition Act. The Court held that such a cause of action
requires that the plaintiff must have suffered loss as a result of
the defendants' conduct contrary to s. 52(1) of the Competition
Act. In this case, the causal connection was held not to be plead.
Thus those portions of the claim that advanced claims pursuant to
s. 36(1) of the Competition Act were struck. However, the Court
held that the usual practice was to allow leave to amend, and so
Similarly, the Court held that the intellectual property aspect
was missing from a claim pursuant to s. 7(d) of the Trade-marks
Act. This was held to be a necessary element. Thus the paragraph
was struck with leave to amend. However, further paragraphs were
struck without leave to amend, as they were held to relate to
origin and quality representations, and not intellectual
The industrial design at suit relates to an expandable garden
hose comprising an inner flexible stretchable hose encased by an
outer fabric hose affixed at both ends with customary garden hose
Before the hearing the plaintiffs had dedicated the industrial
design to the public, discontinued the assertion of the design
infringement portion of this action, and provided a letter
containing a covenant not to sue to the defendants.
It was argued that the issue of validity was now moot after the
dedication, but the Court questioned the effect of the dedication
and noted that the dedication was made after the counterclaim as to
invalidity was filed. The Court still proceeded to assess its
validity, and found that the design is not original and is dictated
solely by function.
Also, it was questioned whether the defendants are "persons
aggrieved" considering the dedication and discontinuance of
the industrial design claim. It was found that these actions, all
unilaterally made by the plaintiffs, could not serve to eliminate
the defendants' status as persons aggrieved.
The Court further ordered a summary trial with respect to
Supertek's claim under section 7(a) of the Trade-marks Act. The
claim pursuant to section 7(a) of the Trade-marks Act was found to
require live witnesses, where their credibility will play a part in
a proper determination of the matter. The Court stated that it
would like to hear from the relevant witnesses by subpoena, if
necessary, to give evidence in person in Court.
The Federal Court dismissed a motion by Apotex seeking particulars from Allergan's pleading relating to the prior art, inventive concept, promised utility and sound prediction of utility of the patents at issue.
Last year we saw the Canadian Courts release trademark decisions that granted a rare interlocutory injunction, issued jailed sentences for failure to comply with injunctive relief, grappled with trademark and internet issues...
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